Court decision

Misuse of Enduring Powers of Attorney and the presumption of undue influence

By Margaret Arthur / 13 October 2021
3 min.
Worthwhile read for: Individuals, Families, Attorneys, Guardians, Administrator

Albert Wylie was 82 and in the last year of his life when he appointed one of his daughters, Yvette, as his Enduring Attorney. Although another daughter, Wendy, had been providing Albert with care, that changed when Yvette decided that she would move into Albert’s house to care for him.

It was only a few weeks later that Albert, who was in a very poor state of health, signed a transfer giving Yvette a half share interest in his home as a joint tenant. He also changed his Will at this time to favour Yvette.

When Albert died, his house passed straight to Yvette, much to the outrage of his other children, Wendy and Steven. 

In making their claim to the Supreme Court, Wendy and Steven pointed to Section 87 of the Powers of Attorney Act. Section 87 is a very helpful provision in the fight against elder financial abuse. It puts the onus on the Enduring Attorney to show that the gift to them wasn’t the result of their undue influence of the principal (that is the person who made the Enduring Power of Attorney). In responding to the claim, Yvette stressed that Albert had seen a lawyer on several occasions before deciding to sign the transfer in her favour and claimed that Albert had fully understood what he was doing when he made her a joint tenant of the house.

In many cases, but by no means all, if the principal has obtained independent legal advice, it is much harder for them, or anyone else, to allege that the Enduring Attorney exerted undue influence. But every case is different, and judges will look closely at all of the surrounding circumstances including the quality of the legal advice given before deciding whether or not the gift was the result of the Attorney’s undue influence.

Here, the Judge accepted evidence that: 

  • the solicitor, who had seen Albert seven times in four months, had not seen Albert on his own;
  • the appointments had not been arranged by Albert but by Yvette or her daughter; and
  • concluded that ‘there was not a shred of evidence that Albert had received independent legal advice’. 

The Judge also repeated the comments from prior cases in which the Court made it clear that a solicitor has an active duty to consider whether the gift ‘was right and proper’ for the principal to make, and to refuse to act if they concluded the gift should not go ahead.

This case, Wylie & Anor v Wylie [2021] QSC 210  is a reminder to family members to be careful about intra- family gifts and other transactions, that may favour a family member. Good quality and thoroughly independent legal advice is essential - not only for warding off potential disputes but to ensure that all other aspects of the matter including stamp duty, impact on estate planning and the financial implications are properly considered. 

If you’re someone’s Enduring Attorney, knowing about Section 87 of the Powers of Attorney Act is essential. Even where there are very good intentions, good ideas can come badly unstuck if they’re not carefully pieced together at the start.

For more information about the roles and responsibilities of an Enduring Attorney, contact us. 

Margaret Arthur
Special Counsel
Margaret is a Special Counsel with HopgoodGanim Lawyers and specialises in the area of Succession law and Elder Law.

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